XXXXX FARGO SECURITIES, LLC
MASTER AGREEMENT AMONG UNDERWRITERS
REGISTERED SEC OFFERINGS
(INCLUDING MULTIPLE SYNDICATE OFFERINGS),
EXEMPT OFFERINGS AND STANDBY UNDERWRITINGS
[ ], 2009
Ladies and Gentlemen:
From time to time Xxxxx Fargo Securities, LLC ("XXXXX FARGO") may invite you
(and others) to participate on the terms set forth herein as an underwriter or
an initial purchaser, or in a similar capacity, in connection with certain
offerings of securities that are managed solely by us or with one or more other
co-managers. If we invite you to participate in a specific offering and sale (an
"OFFERING") to which this Master Agreement Among Underwriters (this "XXXXX FARGO
MASTER AAU") shall apply, we will send the information set forth below in
Section 1(a) to you by one or more wires, telexes, facsimile or electronic data
transmissions or other written communications (each, a "WIRE" and, collectively,
an "AAU"). Each Wire will indicate that it is a Wire pursuant to the Xxxxx Fargo
Master AAU. The Wire inviting you to participate in an Offering is referred to
herein as the "INVITATION WIRE." You and we hereby agree that by the terms
hereof the provisions of this Xxxxx Fargo Master AAU automatically shall be
incorporated by reference in each AAU, EXCEPT THAT ANY SUCH AAU MAY (PURSUANT TO
ANY WIRE CONSTITUTING A PART OF SUCH AAU) ALSO EXCLUDE OR REVISE ANY PROVISION
OF THIS XXXXX FARGO MASTER AAU AND MAY CONTAIN SUCH ADDITIONAL PROVISIONS AS MAY
BE SPECIFIED IN ANY SUCH WIRE.
1. GENERAL.
(a) TERMS OF AAU; CERTAIN DEFINITIONS; CONSTRUCTION. Each AAU shall relate to
an Offering and shall identify, to the extent practicable and to the extent
necessary in our judgment, the following: (i) the securities to be offered in
the Offering (the "SECURITIES"), their principal terms, the issuer or issuers
(each an "ISSUER") and any guarantor (each a "GUARANTOR") thereof and, if
different from the Issuer, the seller or sellers (each a "SELLER") of the
Securities, (ii) the underwriting agreement, purchase agreement, standby
underwriting agreement, distribution agreement or similar agreement (as
identified in such AAU and as amended or supplemented and including any terms
agreement, pricing agreement or similar agreement pursuant to any of the
foregoing, collectively, the "UNDERWRITING AGREEMENT") providing for the
purchase, on a several and not joint basis, of the Securities by the several
underwriters, initial purchasers or others acting in a similar capacity on whose
behalf the Manager (as defined below) executes the Underwriting Agreement (the
"UNDERWRITERS") and whether such agreement provides (x) an option to purchase
Additional Securities (as defined below) to cover over-allotments or (y) for an
offering (an "INTERNATIONAL OFFERING") involving two or more syndicates, each of
which will offer and sell Securities subject to such restrictions as shall be
specified in any Intersyndicate Agreement (as defined below) referred to in such
AAU, (iii) the price at which the Securities are to be purchased by the several
Underwriters from any Issuer or Seller thereof (the "PURCHASE PRICE"), (iv) the
offering terms, including, if applicable, the price or prices at which the
Securities initially will be offered by the Underwriters (the "OFFERING PRICE")
and any selling concession to dealers (the "SELLING CONCESSION"), reallowance
(the "REALLOWANCE"), management fee, global coordinators' fee, praecipuum or
other similar fees, discounts or commissions (collectively, the "FEES AND
COMMISSIONS") with respect to the Securities, (v) the proposed pricing date
("PRICING DATE") and settlement date (the "SETTLEMENT DATE"), (vi) any
contractual restrictions on the offer and sale of the Securities pursuant to the
Underwriting Agreement, Intersyndicate Agreement or otherwise, (vii) any
co-managers for such Offering (the "CO-MANAGERS"), (viii) your proposed
participation in the Offering, (ix) if applicable, the trustee, fiscal agent or
similar agent (the "TRUSTEE") for the indenture, trust agreement, fiscal agency
agreement or similar agreement (the "INDENTURE") under which such Securities
will be issued and (x) any other principal terms of the Offering.
The term "MANAGER" means Xxxxx Fargo Securities, LLC. The term "UNDERWRITERS"
includes the Manager and the Co-Managers, if any. The term "FIRM SECURITIES"
means the number or amount of Securities that the several Underwriters are
initially committed to purchase under the Underwriting Agreement (which may be
expressed as a percentage of an aggregate number or amount of Securities to be
purchased by the Underwriters as in the case of a standby Underwriting
Agreement). The term "ADDITIONAL SECURITIES" means the Securities, if any, that
the several Underwriters have an option to purchase under the Underwriting
Agreement to cover over-allotments. The number, amount or percentage of Firm
Securities set forth opposite each Underwriter's name in the Underwriting
Agreement plus any additional Firm Securities that such Underwriter has become
obligated to purchase under the Underwriting Agreement or Section 11 hereof is
hereinafter referred to as the "ORIGINAL PURCHASE OBLIGATION" of such
Underwriter, and the ratio which such Original Purchase Obligation bears to the
total of all Firm Securities set forth in the Underwriting Agreement (or, in the
case of a standby Underwriting Agreement, to 100%) is hereinafter referred to as
the "UNDERWRITING PERCENTAGE" of such Underwriter.
References herein to statutory sections, rules, regulations, forms and
interpretive materials shall be deemed to include any successor provisions.
(b) ACCEPTANCE OF AAU. You shall have accepted an AAU for an Offering if we
receive your acceptance, prior to the time specified in the Invitation Wire for
such Offering, by wire, telex, facsimile or electronic data transmission or
other written communication (any such manner of communication being deemed "IN
WRITING") (or orally, if promptly confirmed In Writing) in the manner specified
in the Invitation Wire, of our invitation to participate in the Offering. If we
receive your timely acceptance of the invitation to participate, such AAU shall
constitute a valid and binding contract between us. Your acceptance of the
Invitation Wire shall also constitute acceptance by you of the terms of
subsequent Wires to you relating to the Offering unless we receive In Writing,
within the time and in the manner specified in such subsequent Wire, a notice
from you to the effect that you do not accept the terms of such subsequent Wire,
in which case you shall be deemed to have elected not to participate in the
Offering.
(c) UNDERWRITERS' QUESTIONNAIRE. Your acceptance of the Invitation Wire
shall confirm that you have no exceptions to the Underwriters' Questionnaire
attached as Exhibit A hereto (or to any other questions addressed to you in any
Wires relating to the Offering previously sent to you), other than exceptions
noted by you In Writing in connection with the Offering and received from you by
us before the time specified in the Invitation Wire or any subsequent Wire.
2. OFFERING MATERIALS; OFFERING AGREEMENTS.
(a) REGISTERED OFFERINGS. In the case of an Offering that will be
registered in whole or in part (a "REGISTERED OFFERING") under the United States
Securities Act of 1933, as amended (the "1933 ACT"), you understand that the
Issuer has filed, will file or will have filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement including a prospectus
relating to the Securities. The term "REGISTRATION STATEMENT" means such
registration statement as amended or deemed to be amended to the effective date
of the Underwriting Agreement and, in the event that the Issuer relies on Rule
430A under the 1933 Act, the information included in the Prospectus (as defined
below) that was omitted from the Registration Statement at the time it became
effective but that is deemed to be part of the Registration Statement at the
time it became effective pursuant to Rule 430A, and, in the event that the
Issuer files an abbreviated registration statement to register additional
Securities pursuant to Rule 462(b) under the 1933 Act, such abbreviated
registration statement. The term "PROSPECTUS" means the prospectus (including,
in the event that the prospectus delivery requirement under the 1933 Act will be
accomplished pursuant to Rule 434 under the 1933 Act, the prospectus subject to
completion and the term sheet, taken together (a "RULE 434 PROSPECTUS")),
together with the final prospectus supplement, if any, relating to the Offering
first used or made available for use in confirming sales of Securities and, in
the case of a Registered Offering that is an International Offering, the term
"PROSPECTUS" shall mean, collectively, each prospectus (including any Rule 434
Prospectus) or offering circular, together with each final prospectus supplement
or final offering circular supplement, if any, relating to the Offering, in the
respective forms first used or made available for use in confirming sales of
Securities. The term "PRELIMINARY PROSPECTUS" means any preliminary prospectus
relating to the Offering or any preliminary prospectus supplement together with
a prospectus relating to the Offering and, in the case of a Registered Offering
that is an International Offering, the term "PRELIMINARY PROSPECTUS" shall mean,
collectively, each preliminary prospectus or preliminary offering circular
relating to the Offering or each preliminary prospectus supplement or
preliminary offering circular supplement, together with a prospectus or offering
circular, respectively, relating to the Offering. As used herein the terms
"REGISTRATION STATEMENT," "PROSPECTUS" and "PRELIMINARY PROSPECTUS" shall
include in each case the material, if any, incorporated by reference therein.
The Manager will furnish to you, or make arrangements for you to obtain, copies
of each Prospectus and Preliminary Prospectus (but excluding for this purpose,
unless otherwise required pursuant to regulations under the 1933 Act, documents
incorporated therein by reference) as soon as practicable after sufficient
quantities thereof have been made available by the Issuer.
(b) NON-REGISTERED OFFERINGS. In the case of an Offering other than a
Registered Offering, you understand that no registration statement has been or
will be filed with the Commission in connection with such Offering. The term
"OFFERING CIRCULAR" means an offering circular or memorandum, if any, or any
other written materials authorized by the Issuer to be used in connection with
an Offering that is not a Registered Offering. The term "PRELIMINARY OFFERING
CIRCULAR" means any preliminary offering circular or memorandum, if any, or any
other written preliminary materials authorized by the Issuer to be used in
connection with such an Offering. As used herein, the terms "OFFERING CIRCULAR"
and "PRELIMINARY OFFERING CIRCULAR" shall include in each case the material, if
any, incorporated by reference therein. We will either, as soon as practicable
after the later of the date of the Invitation Wire or the date made available to
us by the Issuer, furnish to you (or make available for your review in our
office) a copy of any Preliminary Offering Circular or any proof or draft of the
Offering Circular. In any event, in any Offering involving an Offering Circular,
the Manager will furnish to you, or make arrangements for you to obtain, as soon
as practicable after sufficient quantities thereof are made available by the
Issuer, copies of the final Offering Circular, as amended or supplemented if
applicable (but excluding for this purpose, documents incorporated therein by
reference).
(c) AUTHORITY TO EXECUTE UNDERWRITING AND INTERSYNDICATE AGREEMENTS. You
authorize the Manager, on your behalf, (i) to determine the form of the
Underwriting Agreement and to execute and deliver to the Issuer, Guarantor or
Seller or Sellers, as the case may be, the Underwriting Agreement to purchase
(A) up to the amount of Firm Securities set forth in the applicable AAU and (B)
if the Manager elects on behalf of the several Underwriters to exercise any
option to purchase Additional Securities, up to the amount of Additional
Securities set forth in the applicable AAU, subject, in each case, to reduction
pursuant to Section 4, (ii) to determine the form of any agreement or agreements
between or among the syndicates participating in the Offering and International
Offering, respectively (each an "INTERSYNDICATE AGREEMENT"), and to execute and
deliver any such Intersyndicate Agreement and (iii) to determine the form of and
to execute and deliver any other agreements, certificates, receipts, letters or
other instruments or documents to be executed and delivered by or on behalf of
the Underwriters or Co-Managers.
3. MANAGER'S AUTHORITY.
(a) AUTHORITY TO DETERMINE TERMS OF OFFERING. You authorize the Manager to
act as manager of the Offering of the Securities by the Underwriters (the
"UNDERWRITERS' SECURITIES") or by the Issuer or Seller or Sellers, as the case
may be, pursuant to delayed delivery contracts (the "CONTRACT SECURITIES"), if
any, contemplated by the Underwriting Agreement. You authorize the Manager (i)
to purchase any or all of the Additional Securities for the accounts of the
several Underwriters pursuant to the Underwriting Agreement, (ii) to agree, on
your behalf and on behalf of the Co-Managers, to any addition to, change in or
waiver of any provision of, or the termination of, the Underwriting Agreement or
any Intersyndicate Agreement (other than an increase in the Purchase Price or in
your Original Purchase Obligation to purchase Securities, in either case from
that contemplated by the applicable AAU), (iii) to add or remove prospective
Underwriters to or from the syndicate, (iv) to exercise, in the Manager's
discretion, all of the authority vested in the Manager in the Underwriting
Agreement (including, without limitation, the authority to terminate the
Underwriting Agreement under the circumstances specified therein)
and, in the case of joint book-running managers, to allocate such authority
among such joint book-runners in such manner as the Manager shall deem
appropriate and (v) except as described below in this Section 3(a), to take any
other action as may seem advisable to the Manager in respect of the Offering
(including, without limitation, actions and communications with the Commission,
the National Association of Securities Dealers, Inc. (the "NASD"), state blue
sky or securities commissions, stock exchanges and other regulatory bodies or
organizations). If, in accordance with the terms of the applicable AAU, the
Offering of the Securities is at varying prices based on prevailing market
prices or prices related to prevailing market prices or at negotiated prices,
you authorize the Manager to determine, on your behalf in the Manager's
discretion, any Offering Price and the Fees and Commissions applicable to the
Offering from time to time. You authorize the Manager on your behalf to arrange
for any currency transactions (including forward and hedging currency
transactions) as the Manager deems necessary to facilitate settlement of the
purchase of the Securities, but you do not authorize the Manager on your behalf
to engage in any other forward or hedging transactions in connection with the
Offering unless such transactions are specified in an applicable AAU or are
otherwise consented to by you. You further authorize the Manager, subject to the
provisions of Section 1(b) hereof, (i) to vary the offering terms of the
Securities in effect at any time, including, if applicable, the Offering Price
and Fees and Commissions set forth in the applicable AAU, (ii) to determine, on
your behalf, the Purchase Price and (iii) to increase or decrease the number,
amount or percentage of Securities being offered. Notwithstanding the foregoing
provisions of this Section 3(a), the Manager shall notify the Underwriters,
prior to the signing of the Underwriting Agreement, of any provision in the
Underwriting Agreement that could result in an increase in the amount or
percentage of Firm Securities set forth opposite each Underwriter's name in the
Underwriting Agreement by more than 25% (or such other percentage as shall have
been specified in the applicable Invitation Wire or otherwise consented to by
you) as a result of the failure or refusal of another Underwriter or
Underwriters to perform its or their obligations thereunder.
(b) OFFERING DATE. The Offering is to be made as soon after the
Underwriting Agreement is entered into by the Issuer, Guarantor or Seller or
Sellers, as the case may be, and the Manager as in the Manager's judgment is
advisable, on the terms and conditions set forth in the Prospectus or the
Offering Circular, as the case may be, and the applicable AAU. You agree not to
sell any Securities prior to the time the Manager releases such Securities for
sale to purchasers. The date on which such Securities are released for sale is
referred to herein as the "OFFERING DATE."
(c) ADVERTISING; SUPPLEMENTAL OFFERING MATERIAL. Any public advertisement
of the Offering shall be made by the Manager on behalf of the Underwriters on
such date as the Manager shall determine. You agree not to advertise the
Offering prior to the date of the Manager's advertisement thereof without the
Manager's consent. Any advertisement you may make of the Offering after such
date will be your own responsibility and at your own expense and risk. If the
Offering is made in whole or in part in reliance on Rule 144A under the 1933
Act, you agree not to engage in any "general solicitation" or "general
advertising" (within the meaning of Rule 502(c) under the 0000 Xxx) and to abide
by any other restrictions in the AAU or the Underwriting Agreement in connection
therewith relating to any advertising or publicity. In addition to your
agreement to comply with restrictions on the Offering pursuant to Sections 10(j)
and 10(k) hereof, you also agree that you will not, in connection with the offer
and sale of the Securities in the Offering, without the written consent of the
Manager, give to any prospective purchaser of the Securities or other person not
in your employ any written information concerning the Offering, the Issuer, the
Guarantor or any Seller, other than information contained in any Preliminary
Prospectus, Prospectus, Preliminary Offering Circular or Offering Circular or in
any computational materials ("COMPUTATIONAL MATERIALS") or other offering
materials prepared by or with the consent of the Manager for use by the
Underwriters in connection with the Offering and, in the case of a Registered
Offering, filed with the Commission or the NASD, as applicable (the
"SUPPLEMENTAL OFFERING MATERIALS"). You further agree to cease distribution of
any Computational Materials not later than the Offering Date.
(d) INSTITUTIONAL AND RETAIL SALES. You authorize the Manager to sell to
institutions or retail purchasers such Securities purchased by you pursuant to
the Underwriting Agreement as the Manager shall determine. The Selling
Concession on any such sales shall be credited to the accounts of the
Underwriters as the Manager shall determine.
(e) SALES TO DEALERS. You authorize the Manager to sell to Dealers (as
defined below) such Securities purchased by you pursuant to the Underwriting
Agreement as the Manager shall determine. A "DEALER" shall be a person who is
(i) a broker or dealer (as defined in the By-Laws of the NASD) actually engaged
in the investment banking or securities business and (A) a member in good
standing of the NASD or (B) a foreign bank or dealer not eligible for membership
in the NASD that, in the case of either clause (i)(A) or (i)(B), makes the
representations and agreements applicable to such institutions contained in
Section 10(f) hereof or (ii) in the case of Offerings of Securities that are
exempt securities under Section 3(a)(12) of the Securities Exchange Act of 1934,
as amended (the "1934 ACT"), and such other Securities as from time to time may
be sold by a "bank" (as defined in Section 3(a)(6) of the 1934 Act (a "BANK")),
a Bank that is not a member of the NASD and that makes the representations and
agreements applicable to such institutions contained in Section 10(f) hereof. If
the price for any such sales by the Manager to Dealers exceeds an amount equal
to the Offering Price less the Selling Concession set forth in the applicable
AAU, the amount of such excess, if any, shall be credited to the accounts of the
Underwriters as the Manager shall determine.
(f) DIRECT SALES. The Manager will advise you promptly, on the date of the
Offering, as to the Securities purchased by you pursuant to the Underwriting
Agreement that you shall retain for direct sale. At any time prior to the
termination of the applicable AAU, any such Securities that are held by the
Manager for sale but not sold may, at your request and at the Manager's
discretion, be released to you for direct sale, and Securities so released to
you shall no longer be deemed held for sale by the Manager. You may allow, and
Dealers may reallow, a discount on sales to Dealers in an amount not in excess
of the Reallowance set forth in the applicable AAU. You may not purchase
Securities from, or sell Securities to, any other Underwriter or Dealer at any
discount or concession other than the Reallowance, except with the consent of
the Manager.
(g) RELEASE OF UNSOLD SECURITIES. From time to time prior to the termination
of the applicable AAU, at the request of the Manager, you will advise the
Manager of the amount of Securities remaining unsold which were retained by or
released to you for direct sale and of the amount of Securities and Other
Securities (as defined below) purchased for your account remaining unsold which
were delivered to you pursuant to Section 5 hereof or pursuant to any
Intersyndicate Agreement, and, at the request of the Manager, you will release
to the Manager any such Securities and Other Securities remaining unsold (i) for
sale by the Manager to institutions, Dealers or retail purchasers, (ii) for sale
by the Issuer or a Seller pursuant to delayed delivery contracts or (iii) if, in
the Manager's opinion, such Securities or Other Securities are needed to make
delivery against sales made pursuant to Section 5 hereof or any Intersyndicate
Agreement.
(h) INTERNATIONAL OFFERINGS. In the case of an International Offering, you
authorize the Manager (i) to make representations on your behalf as set forth in
any Intersyndicate Agreement or Underwriting Agreement and (ii) to purchase or
sell for your account pursuant to the Intersyndicate Agreement (A) Securities,
(B) any other securities of the same class and series, or any securities into
which the Securities may be converted or for which the Securities may be
exchanged or exercised, (C) any securities that may, in whole or in significant
part, determine the value of the Securities and (D) any other securities
designated in the applicable AAU or applicable Intersyndicate Agreement (the
securities referred to in clauses (B), (C) or (D) above being referred to
collectively as the "OTHER SECURITIES").
4. DELAYED DELIVERY CONTRACTS.
(a) ARRANGEMENTS FOR SALES. You agree that arrangements for sales of
Contract Securities will be made only through the Manager acting either directly
or through Dealers (including Underwriters acting as Dealers), and you authorize
the Manager to act on your behalf in making such arrangements. The aggregate
amount of Securities to be purchased by the several Underwriters shall be
reduced by the respective amounts of Contract Securities attributed to such
Underwriters as hereinafter provided. Subject to the provisions of Section 4(b),
the aggregate amount of Contract Securities shall be attributed to the
Underwriters as nearly as practicable in their respective Underwriting
Percentages, except that, as determined by the Manager in its discretion, (i)
Contract Securities directed and allocated by a purchaser to specific
Underwriters shall be attributed to such Underwriters and (ii) Contract
Securities for which arrangements have been made for sale through Dealers shall
be attributed to each Underwriter approximately in the proportion that
Securities of such Underwriter held by the Manager for sales to Dealers bear to
all Securities so held. The fee with respect to Contract Securities payable to
the Manager for the accounts of the Underwriters pursuant to the Underwriting
Agreement shall be credited to the accounts of the respective Underwriters in
proportion to the Contract Securities attributed to such Underwriters pursuant
to the provisions of this Section 4(a), less, in the case of each Underwriter,
the concession to Dealers on Contract Securities sold through Dealers and
attributed to such Underwriter.
(b) EXCESS SALES. If the amount of Contract Securities attributable to an
Underwriter pursuant to Section 4(a) would exceed such Underwriter's Original
Purchase Obligation reduced by the amount of Underwriters' Securities sold by or
on behalf of such Underwriter, such excess shall not be attributed to such
Underwriter, and such Underwriter shall be regarded as having acted only as a
Dealer with respect to, and shall receive only the concession to Dealers on,
such excess.
5. PURCHASE AND SALE OF SECURITIES; FACILITATION OF DISTRIBUTION.
(a) PURCHASE AND SALE OF SECURITIES; FACILITATION OF DISTRIBUTION. In order
to facilitate the distribution and sale of the Securities, you authorize the
Manager to buy and sell Securities and any Other Securities, in addition to
Securities sold pursuant to Section 3 hereof, in the open market or otherwise
(including, without limitation, pursuant to any Intersyndicate Agreement), for
long or short account, on such terms as it shall deem advisable, and to
over-allot in arranging sales. Such purchases and sales and over-allotments
shall be made for the accounts of the several Underwriters as nearly as
practicable in their respective Underwriting Percentages or, in the case of an
International Offering, for such accounts as are set forth in the applicable
Intersyndicate Agreement. Any securities which may have been purchased by the
Manager for stabilizing purposes in connection with the Offering prior to the
execution of the applicable AAU shall be treated as having been purchased
pursuant to this Section 5(a) for the accounts of the several Underwriters or,
in the case of an International Offering, for such accounts as are set forth in
the applicable Intersyndicate Agreement. Your net commitment pursuant to the
foregoing authorization shall not exceed at the close of business on any day an
amount equal to 20% of your Underwriting Percentage of the aggregate initial
Offering Price of the Firm Securities, it being understood that, in calculating
such net commitment, the initial Offering Price shall be used with respect to
the Securities so purchased or sold and, in the case of all Other Securities,
the purchase price thereof shall be used. Your net commitment for short account
(i.e., "naked short") shall be calculated by assuming that all Securities that
may be purchased upon exercise of any over-allotment option then exercisable are
acquired (whether or not actually acquired) and, in the case of an International
Offering, after giving effect to the purchase of any Securities or Other
Securities that the Manager has agreed to purchase for your account pursuant to
any applicable Intersyndicate Agreement. On demand you will take up and pay for
any Securities or Other Securities so purchased for your account and any
Securities released to you pursuant to this Agreement and will deliver to the
Manager against payment any Securities or Other Securities so sold or
over-allotted for your account or released to you. The Manager agrees to notify
you if it engages in any stabilization transaction requiring reports to be filed
pursuant to Rule 17a-2 under the 1934 Act and to notify you of the date of
termination of stabilization. You agree not to stabilize or engage in any
syndicate covering transaction (as defined in Rule 100 of Regulation M under the
1934 Act ("REGULATION M")) in connection with the Offering without the prior
consent of the Manager. You further agree to provide to the Manager any reports
required of you pursuant to Rule 17a-2 not later than the date specified therein
and you authorize the Manager to file on your behalf with the Commission any
reports required by such Rule.
(b) PENALTY WITH RESPECT TO SECURITIES REPURCHASED BY THE MANAGER. If
pursuant to the provisions of Section 5(a) and prior to the termination of the
Manager's authority under the applicable AAU to cover any short position
incurred or such other date as the Manager shall specify in a Wire, either (i)
the Manager purchases or contracts to purchase for the account of any
Underwriter in the open market or otherwise any Securities which were retained
by, or released to, you for direct sale or any Securities sold pursuant to
Section 3(d) for which you received a portion of the Selling Concession set
forth in the applicable AAU, or any Securities which may have been issued on
transfer or in exchange for such Securities, and which Securities were therefore
not effectively placed for investment or (ii) if the Manager has advised you by
Wire that trading in the Securities will be reported to the Manager pursuant to
the "Initial Public Offering Tracking System" of The Depository Trust Company
("DTC") and the Manager determines, based on notices from DTC, that your
customers sold an amount of Securities during any day that exceeds the amount
previously notified to you by Wire, then you authorize the Manager either to
charge your account with an amount equal to such portion of the Selling
Concession set forth in the applicable AAU received by you with respect to such
Securities or, in the case of clause (ii), such Securities as exceed the amount
specified in such Wire or to require you to repurchase such Securities or, in
the case of clause (ii), such Securities as exceed the amount specified in such
Wire, at a price equal to the total cost of such purchase, including transfer
taxes, accrued interest, dividends and commissions, if any.
(c) COMPLIANCE WITH REGULATION M. You represent that, at all times since
you were invited to participate in the Offering, you have complied with the
provisions of Regulation M applicable to such Offering. If you have been
notified in a Wire that the Underwriters may conduct passive market making in
compliance with Rule 103 of Regulation M in connection with the Offering, you
represent that, at all times since your receipt of such Wire, you have complied
with the provisions of such Rule applicable to such Offering, subject to the
last paragraph of Section 5(a).
(d) STANDBY UNDERWRITINGS. You authorize the Manager in its discretion, at
any time on, or from time to time prior to, the expiration of the conversion
right of convertible securities identified in the applicable AAU in the case of
securities called for redemption, or the expiration of rights to acquire
securities in the case of rights offerings, for which, in either case, standby
underwriting arrangements have been made: (i) to purchase for your account
convertible securities or rights to acquire Securities, in the open market or
otherwise, on such terms as the Manager determines and to convert convertible
securities or exercise rights so purchased; and (ii) to offer and sell the
underlying common stock or depositary shares for your account, in the open
market or otherwise, for long or short account (for purposes of this clause,
such common stock or depositary shares being considered the equivalent of
convertible securities or rights), on such terms consistent with the terms of
the Offering set forth in the Prospectus or Offering Circular as the Manager
determines. On demand you will take up and pay for any securities so purchased
for your account or you will deliver to the Manager against payment any
securities so sold, as the case may be. During such period you may offer and
sell the underlying common stock or depositary shares, but only at prices set by
the Manager from time to time, and any such sales shall be subject to the
Manager's right to sell to you the underlying common stock or depositary shares
as above provided and to the Manager's right to reserve your Securities
purchased, received or to be received upon conversion or exercise. You agree not
to bid for, purchase, attempt to induce others to purchase, or sell, directly or
indirectly, any convertible securities or rights or underlying common stock or
depositary shares; provided, however, that no Underwriter shall be prohibited
from (A) selling underlying common stock owned beneficially by such Underwriter
on the day the convertible securities were first called for redemption, (B)
converting convertible securities owned beneficially by such Underwriter on such
date or selling underlying common stock issued upon conversion of convertible
securities so owned, (C) exercising rights owned beneficially by such
Underwriter on the record date for a rights offering or selling the underlying
common stock or depositary shares issued upon exercise of rights so owned or (D)
purchasing or selling convertible securities or rights or underlying common
stock or depositary shares as a broker pursuant to unsolicited orders.
6. PAYMENT AND SETTLEMENT.
You will deliver to the Manager on the date and at the place and time
specified in the applicable AAU (or on such later date and at such place and
time as may be specified by the Manager in a subsequent Wire) the funds
specified in the applicable AAU, payable to the order of Xxxxx Fargo Securities,
LLC, for (i) an amount equal to the Offering Price plus (if not included in the
Offering Price) accrued interest, amortization of original issue discount or
dividends, if any, specified in the Prospectus or Offering Circular, less the
applicable Selling Concession in respect of the Firm Securities to be purchased
by you, (ii) an amount equal to the Offering Price plus (if not included in the
Offering Price) accrued interest, amortization of original issue discount or
dividends, if any, specified in the Prospectus or Offering Circular, less the
applicable Selling Concession in respect of such of the Firm Securities to be
purchased by you as shall have been retained by or released to you for direct
sale as contemplated by Section 3(f) hereof or (iii) the amount set forth or
indicated in the applicable AAU, as the Manager shall advise. You will make
similar payment as the Manager may direct for Additional Securities, if any, to
be purchased by you on the date specified by the Manager for such payment. The
Manager will make payment to the Issuer or Seller or Sellers, as the case may
be, against delivery to the Manager for your account of the Securities to be
purchased by you, and the Manager will deliver to you the Securities paid for by
you which shall have been retained by or released to you for direct sale. If the
Manager determines that transactions in the Securities are to be settled through
the facilities of DTC or other clearinghouse facility, payment for and delivery
of Securities purchased by you shall be made through such facilities, if you are
a member, or, if you are not a member, settlement shall be made through your
ordinary correspondent who is a member.
7. EXPENSES.
(a) MANAGEMENT FEE. You authorize the Manager to charge your account as
compensation for the Manager's and Co-Managers' services in connection with the
Offering, including the purchase from the Issuer or Seller or Sellers, as the
case may be, of the Securities, and the management of the Offering, the amount,
if any, set forth as the management fee, global coordinators fee, praecipuum or
other similar fee in the applicable AAU. Such amount shall be divided among the
Manager and any Co-Managers named in the applicable AAU as they may determine.
(b) GENERAL EXPENSES. You authorize the Manager to charge your account with
your Underwriting Percentage of all expenses of a general nature incurred by the
Manager and Co-Managers under the applicable AAU in connection with the
Offering, including the negotiation and preparation thereof, or in connection
with the purchase, carrying, marketing and sale of any securities under the
applicable AAU and any Intersyndicate Agreement, including, without limitation,
legal fees and expenses, transfer taxes, costs associated with approval of the
Offering by the NASD and the costs of currency transactions (including forward
and hedging currency transactions) entered into to facilitate settlement of the
purchase of Securities permitted under Section 3(a) hereof, and may also charge
your account with your Underwriting Percentage of any losses incurred upon the
sale of Securities or Other Securities pursuant to the applicable AAU or any
Intersyndicate Agreement, including any losses incurred upon the sale of
securities referred to in Section 5(d)(ii) hereof.
8. MANAGEMENT OF SECURITIES AND FUNDS.
(a) ADVANCES; LOANS; PLEDGES. You authorize the Manager to advance the
Manager's own funds for your account, charging current interest rates, or to
arrange loans for your account for the purpose of carrying out the provisions of
the applicable AAU and any Intersyndicate Agreement and in connection therewith,
to hold or pledge as security therefor all or any securities which the Manager
may be holding for your account under the applicable AAU and any Intersyndicate
Agreement, to execute and deliver any notes or other instruments evidencing such
advances or loans and to give all instructions to the lenders with respect to
any such loans and the proceeds thereof. The obligations of the Underwriters
under loans arranged on their behalf shall be several in proportion to their
respective Original Purchase Obligations and not joint. Any lender is authorized
to accept the Manager's instructions as to the disposition of the proceeds of
any such loans. In the event of any such advance or loan, repayment thereof
shall, in the discretion of the Manager, be effected prior to making any
remittance or delivery pursuant to Section 8(b), 8(c) or 9(b) hereof.
(b) RETURN OF AMOUNT PAID FOR SECURITIES. Out of payment received by the
Manager for Securities sold for your account which have been paid for by you,
the Manager will remit to you promptly an amount equal to the price paid by you
for such Securities.
(C) DELIVERY AND REDELIVERY OF SECURITIES FOR CARRYING PURPOSES. The
Manager may deliver to you from time to time prior to the termination of the
applicable AAU pursuant to Section 9(a) hereof against payment, for carrying
purposes only, any Securities or Other Securities purchased by you under the
applicable AAU or any Intersyndicate Agreement which the Manager is holding for
sale for your account but which are not sold and paid for. You will redeliver to
the Manager against payment any Securities or Other Securities delivered to you
for carrying purposes at such times as the Manager may demand.
9. TERMINATION; INDEMNIFICATION.
(a) TERMINATION. Each AAU shall terminate at the close of business on the
later of the date on which the Underwriters pay the Issuer or Seller or Sellers,
as the case may be, for the Securities and 45 full days after the applicable
Offering Date, unless sooner terminated by the Manager. The Manager may at its
discretion by notice to you prior to the termination of such AAU alter any of
the terms or conditions of the Offering to the extent permitted by Section 3 or
Section 4 hereof, or terminate or suspend the effectiveness of Section 5 hereof,
or any part thereof. No termination or suspension pursuant to this paragraph
shall affect the Manager's authority under Section 3(a) hereof to take actions
in respect of the Offering or under Section 5 hereof to cover any short position
incurred under such AAU or in connection with covering any such short position
to require you to repurchase Securities as specified in Section 5(b) hereof.
(b) DELIVERY OR SALE OF SECURITIES; SETTLEMENT OF ACCOUNTS. Upon
termination of each AAU or prior thereto at the Manager's discretion, the
Manager shall deliver to you any Securities paid for by you pursuant to Section
6(a) hereof and held by the Manager for sale pursuant to Section 3(d) or 3(e)
hereof but not sold and paid for and any Securities or Other Securities that are
held by the Manager for your account pursuant to the provisions of Section 5
hereof or any Intersyndicate Agreement. Notwithstanding the foregoing, at the
termination of such AAU, if the aggregate initial Offering Price of any such
Securities and the aggregate purchase price of any Other Securities so held and
not sold and paid for does not exceed an amount equal to 20% of the aggregate
initial Offering Price of the Securities, the Manager may, in its discretion,
sell such Securities and Other Securities for the accounts of the several
Underwriters, at such prices, on such terms, at such times and in such manner as
it may determine. Within the period specified by applicable NASD rules or, if no
period is so specified, as soon as practicable after termination of such AAU,
your account shall be settled and paid. The Manager may reserve from
distribution such amount as the Manager deems advisable to cover possible
additional expenses. The determination by the Manager of the amount so to be
paid to or by you shall be final and conclusive. Any of your funds in the
Manager's hands may be held with the Manager's general funds without
accountability for interest.
Notwithstanding any provision of this Master AAU other than Section 10(l), upon
termination of each AAU or prior thereto at the Manager's discretion, the
Manager (i) may allocate to the accounts of the Underwriters the expenses
described in Section 7(b) hereof and any losses incurred upon the sale of
Securities or Other Securities pursuant to the applicable AAU or any
Intersyndicate Agreement (including any losses incurred upon the sale of
securities referred to in Section 5(d)(ii) hereof), (ii) may deliver to the
Underwriters any unsold Securities or Other Securities purchased pursuant to
Section 5(a) hereof or any Intersyndicate Agreement and (iii) may deliver to the
Underwriters any unsold Securities purchased pursuant to the applicable
Underwriting Agreement, in each case in the Manager's discretion. The Manager
shall have full discretion to allocate expenses, losses and Securities to the
accounts of any Underwriter as the Manager decides, except that (A) no
Underwriter (other than the Manager or a Co-Manager) shall bear more than its
share of such expenses, losses or Securities (such share shall not exceed such
Underwriter's Underwriting Percentage and shall be determined pro rata among all
such Underwriters based on their Underwriting Percentages), (B) no such
Underwriter shall receive Securities that, together with any Securities
purchased by such Underwriter pursuant to Section 6 (but excluding any
Securities that such Underwriter is required to repurchase pursuant to Section
5(b)) exceed such Underwriter's Original Purchase Obligation and (C) no
Co-Manager shall bear more than its share, as among the Manager and the other
Co-Managers, of such expenses, losses or Securities (such share to be determined
pro rata among the Manager and all Co-Managers based on (1) their relative
Underwriting Percentages as a percentage of the total combined Underwriting
Percentages of the Manager and all Co-Managers, or (2) if the Manager so
determines, their relative Offering Economics (as hereinafter defined) as a
percentage of the combined Offering Economics of the Manager and all Co-Managers
together. The Manager's or a Co-Manager's "OFFERING ECONOMICS" equals the sum of
its Management Fee Share, its Underwriting Fee Share and its Selling Concession
Stare (each as hereinafter defined). The Manager's or a Co-Manager's "MANAGEMENT
FEE SHARE" is the dollar amount of its share, as agreed among the Manager and
any Co-Managers, of the amount payable by all Underwriters to some or all of the
Manager and any Co-Manager as a global coordinators' fee, praecipuum, management
fee or other fee. The Manager's or a Co-Manager's "UNDERWRITING FEE SHARE" is
the dollar amount of its Underwriting Percentage of the aggregate initial
Offering Price of the Firm Securities less the Purchase Price thereof, less the
Selling Concession thereon. The Manager's or a Co-Manager's or Underwriter's
"SELLING CONCESSION SHARE" is the dollar amount of any Selling Concession
credited to it on sales from the institutional pot or on sales made for the
account of any other Underwriter.
If any Securities or Other Securities returned to you pursuant to clause (ii)
or (iii) above were not paid for by you pursuant to Section 6 hereof, you shall
pay to the Manager an amount per security equal to the amount set forth in
Section 6(i), in the case of Securities returned to you pursuant to clause (iii)
above, or the purchase price of such securities, in the case of Securities or
Other Securities returned to you pursuant to clause (ii) above.
(c) POST SETTLEMENT EXPENSES. Notwithstanding any settlement on the
termination of the applicable AAU, you agree to pay any transfer taxes which may
be assessed and paid after such settlement on account of any sales or transfers
under such AAU or any Intersyndicate Agreement for your account and your
Underwriting Percentage of (i) all expenses incurred by the Manager in
investigating, preparing to defend or defending against any action, claim or
proceeding which is asserted or instituted by any party (including any
governmental or regulatory body) relating to (A) the Registration Statement, any
Preliminary Prospectus or Prospectus (or any amendment or supplement thereto),
any Preliminary Offering Circular or Offering Circular (or any amendment or
supplement thereto) or Supplemental Offering Materials, (B) the violation of any
applicable restrictions on the offer, sale, resale or purchase of Securities or
Other Securities imposed by United States Federal or state laws or foreign laws
and the rules and regulations of any regulatory body promulgated thereunder or
pursuant to the terms of such AAU, the Underwriting Agreement or any
Intersyndicate Agreement or (C) any claim that the Underwriters constitute a
partnership, an association or an unincorporated business or other separate
entity and (ii) any liability, including attorneys' fees, incurred by the
Manager in respect of any such action, claim or proceeding, whether such
liability shall be the result of a judgment or arbitrator's determination or as
a result of any settlement agreed to by the Manager, other than any such expense
or liability as to which the Manager actually receives indemnity pursuant to
Section 9(d), contribution pursuant to Section 9(e), indemnity or contribution
pursuant to the Underwriting Agreement or damages from an Underwriter for breach
of its representations, warranties, agreements, or covenants contained in the
applicable AAU. None of the foregoing provisions of this Section 9(c) shall
relieve any defaulting or breaching Underwriter from liability for its defaults
or breach.
(d) INDEMNIFICATION. You agree to indemnify and hold harmless each other
Underwriter and each person, if any, who controls any such Underwriter within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act,
to the extent and upon the terms which you agree to indemnify and hold harmless
any of the Issuer, the Guarantor, any Seller, any person controlling the Issuer,
the Guarantor or any Seller, their respective directors and, in the case of a
Registered Offering, their respective officers who signed the Registration
Statement and, in the case of an Offering other than a Registered Offering,
their respective officers, in each case as set forth in the Underwriting
Agreement. You further agree to indemnify and hold harmless any investment
banking firm identified in a Wire as the "qualified independent underwriter" as
defined in Rule 2720 of the NASD's Conduct Rules ("QIU") for an Offering and
each person, if any, who controls such QIU within the meaning of either Section
15 of the 1933 Act or Section 20 of the 1934 Act, from and against any and all
losses, claims, damages and liabilities related to, arising out of or in
connection with such investment banking firm's activities as QIU for the
Offering. You agree with the other Underwriters to reimburse such QIU for all
expenses, including fees and expenses of counsel as they are incurred, in
connection with investigating, preparing for, or defending any action, claim or
proceeding related to, arising out of, or in connection with such QIU's
activities as a QIU for the Offering. Each Underwriter shall be responsible for
its Underwriting Percentage of any amount due to such QIU on account of the
foregoing indemnity. You agree that such QIU shall have no additional liability
to any Underwriter or otherwise as a result of its serving as QIU in connection
with the Offering. You further agree that to the extent the indemnification
provided to a QIU under this Section 9(d) is unavailable to such QIU or
insufficient in respect of any losses, claims, damages or liabilities (and
expenses relating thereto), whether as a matter of law or public policy or as a
result of the default of any Underwriter in performing its obligations under
this Section 9(d), you and each other Underwriter shall contribute to the amount
paid or payable by such QIU as a result of such losses, claims, damages or
liabilities (and expenses relating thereto) in proportion to your and their
respective Underwriting Percentages.
(e) CONTRIBUTION. Notwithstanding any settlement on the termination of the
applicable AAU, you agree to pay upon request of the Manager, as contribution,
your Underwriting Percentage of any losses, claims, damages or liabilities,
joint or several, paid or incurred by any Underwriter to any person other than
an Underwriter, arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus or Prospectus (or any amendment or supplement thereto),
any Preliminary Offering Circular or Offering Circular (or any amendment or
supplement thereto) or Supplemental Offering Materials or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading (other than an untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with information furnished to the Company in
writing by the Underwriter on whose behalf the request for contribution is being
made expressly for use therein) and your Underwriting Percentage of any legal or
other expenses reasonably incurred by the Underwriter (with the approval of the
Manager) on whose behalf the request for contribution is being made in
connection with investigating or defending any such loss, claim, damage or
liability or any action in respect thereof; provided that no request shall be
made on behalf of any Underwriter guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) from any Underwriter who was not
guilty of such fraudulent misrepresentation. None of the foregoing provisions of
this Section 9(e) shall relieve any defaulting or breaching Underwriter from
liability for its defaults or breach.
(f) SEPARATE COUNSEL. If any claim is asserted or action or proceeding
commenced pursuant to which the indemnity provided in Section 9(d) may apply,
the Manager may take such action in connection therewith as it deems necessary
or desirable, including retention of counsel for the Underwriters and in its
discretion separate counsel for any particular Underwriter or group of
Underwriters, and the fees and disbursements of any counsel so retained shall be
allocated among the several Underwriters as determined by the Manager. Any
Underwriter may elect to retain at its own expense its own counsel and, on
advice of such counsel but only with the written consent of the Manager, may
settle or consent to the settlement of any such claim, action or proceeding. The
Manager may settle or consent to the settlement of any such claim, action or
proceeding. Whenever the Manager receives notice of the assertion of any claim
or the commencement of any action or proceeding to which the provisions of
Section 9(d) would apply, it will give prompt notice thereof to each
Underwriter, and whenever you receive notice of the assertion of any claim or
commencement of any action or proceeding to which the provisions of Section 9(d)
would apply, you will give prompt notice thereof to the Manager. The Manager
also will furnish each Underwriter with periodic reports, at such times as it
deems appropriate, as to the status of such claim, action or proceeding, and the
action taken by it in connection therewith.
(g) SURVIVAL OF AGREEMENTS. Regardless of any termination of an AAU, your
agreements contained in Section 5 and Sections 3(a), 9(c), 9(d), 9(e), 9(f) and
11(b) shall remain operative and in full force and effect regardless of (i) any
termination of the Underwriting Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Issuer, the Guarantor, any Seller, any of their respective
directors or officers or any person controlling the Issuer, the Guarantor or any
Seller and (iii) acceptance of any payment for any Securities.
10. REPRESENTATIONS AND COVENANTS OF UNDERWRITERS.
(a) KNOWLEDGE OF OFFERING. You understand that it is your responsibility to
examine the Registration Statement and the Prospectus or the Offering Circular,
as the case may be, relating to the Offering, any amendment or supplement
thereto, any Preliminary Prospectus or Preliminary Offering Circular and the
material, if any, incorporated by reference therein and any Supplemental
Offering Materials and you agree that you will familiarize yourself with the
terms of the Securities, any applicable Indenture and the other terms of the
Offering thereof which are to be reflected in the Prospectus or the Offering
Circular, as the case may be, and the applicable AAU and Underwriting Agreement.
The Manager is authorized to approve on your behalf any amendments or
supplements to the Registration Statement and the Prospectus or the Offering
Circular, as the case may be.
(b) DISTRIBUTION OF MATERIALS. You will keep an accurate record of the
names and addresses of all persons to whom you give copies of the Registration
Statement, the Prospectus and any Preliminary Prospectus (or any amendment or
supplement thereto) or the Offering Circular and any Preliminary Offering
Circular (or any amendment or supplement thereto), as the case may be, and, when
furnished with any subsequent amendment to the Registration Statement, any
subsequent Prospectus, any subsequent Offering Circular or any memorandum
outlining changes in the Registration Statement or any Prospectus or Offering
Circular, you will, upon request of the Manager, promptly forward copies thereof
to such persons.
(c) ACCURACY OF UNDERWRITERS' INFORMATION. You confirm that the information
that you have given or are deemed to have given in response to the Underwriters'
Questionnaire attached as Exhibit A hereto (and to any other questions addressed
to you in the Invitation Wire or other Wires), which information has been
furnished to the Issuer for use in the Registration Statement and the Prospectus
or the Offering Circular, as the case may be, or has otherwise been relied upon
in connection with the Offering, is complete and accurate. You will notify the
Manager immediately of any development before the termination of the applicable
AAU which makes untrue or incomplete any information that you have given or are
deemed to have given in response to the Underwriters' Questionnaire (or such
other questions).
(d) NAME; ADDRESS. Unless you have promptly notified the Manager In Writing
otherwise, your name as it should appear in the Prospectus or the Offering
Circular and any advertisement, if different, and your address are as set forth
on the signature pages hereof.
(e) CAPITAL REQUIREMENTS. You represent that your commitment to purchase
the Securities will not result in a violation of the financial responsibility
requirements of Rule 15c3-1 under the 1934 Act or of any similar provision of
any applicable rules of any securities exchange to which you are subject or, if
you are a financial institution subject to regulation by the Board of Governors
of the United States Federal Reserve System, the United States Comptroller of
the Currency or the United States Federal Deposit Insurance Corporation, will
not place you in violation of any applicable capital requirements or
restrictions of such regulator or any other regulator to which you are subject.
(f) COMPLIANCE WITH NASD REQUIREMENTS. You represent that you are a member
in good standing of the NASD, a Bank that is not a member of the NASD or a
foreign bank or dealer not eligible for membership in the NASD. In making sales
of Securities, if you are such a member in good standing of the NASD, you agree
to comply with all applicable interpretive material ("IM") and rules of the
NASD, including, without limitation, IM-2110-1 (the NASD's interpretation with
respect to free-riding and withholding) and Rule 2740 of the NASD's Conduct
Rules, or, if you are such a foreign bank or dealer, you agree to comply with
IM-2110-1 and Rules 2730, 2740 and 2750 of the NASD's Conduct Rules as though
you were such a member and Rule 2420 of the NASD's Conduct Rules as it applies
to a nonmember broker or dealer in a foreign country. If you are a Bank, you
agree, to the extent required by applicable law or the Conduct Rules of the
NASD, that you will not, in connection with the public offering of any
Securities that do not constitute "exempted securities" within the meaning of
Section 3(a)(12) of the 1934 Act or such other securities as from time to time
may be sold by a Bank, purchase any Securities at a discount from the Offering
Price from any Underwriter or Dealer or otherwise accept any Fees and
Commissions from any Underwriter or Dealer, and you agree to comply with Rule
2420 of the NASD's Conduct Rules as though you were a member.
(g) FURTHER STATE NOTICE. The Manager will file a Further State Notice with
the Department of State of New York, if required.
(h) COMPLIANCE WITH RULE 15C2-8. In the case of a Registered Offering and
any other Offering to which the provisions of Rule 15c2-8 under the 1934 Act are
made applicable pursuant to the AAU or otherwise, you agree to comply with such
Rule in connection with the Offering. In the case of an Offering other than a
Registered Offering, you agree to comply with applicable Federal and state laws
and the applicable rules and regulations of any regulatory body promulgated
thereunder governing the use and distribution of offering circulars by
underwriters.
(i) DISCRETIONARY ACCOUNTS. In the case of a Registered Offering of
Securities issued by an Issuer that was not, immediately prior to the filing of
the Registration Statement, subject to the requirements of Section 13(a) or
15(d) of the 1934 Act, you agree that you will not make sales to any account
over which you exercise discretionary authority in connection with such sale
except as otherwise permitted by the applicable AAU for such Offering.
(j) OFFERING RESTRICTIONS. If you are a foreign bank or dealer and you are
not registered as a broker-dealer under Section 15 of the 1934 Act, you agree
that while you are acting as an Underwriter in respect of the Securities and in
any event during the term of the applicable AAU, you will not directly or
indirectly effect in, or with persons who are nationals or residents of, the
United States, its territories or possessions, any transactions (except for the
purchases provided for in the Underwriting Agreement and transactions
contemplated by Sections 3 and 5 hereof) in Securities or any Other Securities.
It is understood that, except as specified in the applicable AAU, no action
has been taken by the Manager, the Issuer, the Guarantor or any Seller to permit
you to offer Securities in any
jurisdiction other than the United States, in the case of a Registered Offering,
where action would be required for such purpose.
(k) REPRESENTATIONS, WARRANTIES AND AGREEMENTS. You agree to make to each
other Underwriter participating in an Offering the same representations,
warranties and agreements, if any, made by the Underwriters to the Issuer, the
Guarantor or the Seller or Sellers, as the case may be, in the applicable
Underwriting Agreement or any Intersyndicate Agreement, and you authorize the
Manager to make such representations, warranties and agreements to the Issuer,
the Guarantor or the Seller or Sellers, as the case may be, on your behalf.
(l) LIMITATION ON THE AUTHORITY OF THE MANAGER TO PURCHASE AND SELL
SECURITIES FOR THE ACCOUNT OF CERTAIN UNDERWRITERS. Notwithstanding any
provision of this AAU authorizing the Manager to purchase or sell any Securities
or Other Securities (including arranging for the sale of Contract Securities) or
to over-allot in arranging sales of Securities for the accounts of the several
Underwriters, the Manager may not, in connection with the Offering of any
Securities, make any such purchases, sales and/or over-allotments for the
account of any Underwriter that, not later than its acceptance of the Invitation
Wire relating to such Offering, has advised the Manager In Writing that, due to
its status as, or relationship to, a bank or bank holding company such
purchases, sales and/or over-allotments are prohibited by applicable law. If any
Underwriter so advises the Manager, the Manager may allocate any such purchases,
sales and over-allotments (and the related expenses) which otherwise would have
been allocated to your account based on your respective Underwriting Percentage
to your account based on the ratio of your Original Purchase Obligation to the
Original Purchase Obligations of all Underwriters other than the advising
Underwriter or Underwriters or in such other manner as the Manager shall
determine.
(m) COMPLIANCE WITH LAW. Without limitation of any other provision of this
Agreement, you agree that, in selling Securities and otherwise acting as
Underwriter in any Offering, you will comply with all applicable laws, rules and
regulations, including but not limited to all applicable provisions of the 1933
Act and the 1934 Act and all applicable rules and regulations of the Commission,
the NASD and any applicable securities exchange or other applicable regulatory
authority.
11. DEFAULTING UNDERWRITERS.
(a) EFFECT OF TERMINATION. If the Underwriting Agreement is terminated as
permitted by the terms thereof, your obligations hereunder with respect to the
Offering of the Securities shall immediately terminate except (i) as set forth
in Section 9(g), (ii) that you shall remain liable for your Underwriting
Percentage (or such other percentage as may be specified pursuant to Section
9(b)) of all expenses and for any purchases or sales which may have been made
for your account pursuant to the provisions of Section 5 hereof or any
Intersyndicate Agreement and (iii) that such termination shall not affect any
obligations of any defaulting or breaching Underwriter.
(b) SHARING OF LIABILITY. If any Underwriter shall default in its
obligations (i) pursuant to Section 5(a), 5(b) or 5(d), (ii) to pay amounts
charged to its account pursuant to Section 7(a), 7(b) or 8(a) or (iii) pursuant
to Section 9(b), 9(c), 9(d), 9(e), 9(f) or 11(a), you will assume your
proportionate share (determined on the basis of the respective Underwriting
Percentages of the non-defaulting Underwriters) of such obligations, but no such
assumption shall relieve any defaulting Underwriter from liability to the
non-defaulting Underwriters, the Issuer, the Guarantor or any Seller for its
default.
(c) ARRANGEMENTS FOR PURCHASES. The Manager is authorized to arrange for
the purchase by others (including the Manager or any other Underwriter) of any
Securities not purchased by any defaulting Underwriter in accordance with the
terms of the applicable Underwriting Agreement or, if the applicable
Underwriting Agreement does not provide arrangements for defaulting
Underwriters, in the discretion of the Manager. If such arrangements are made,
the respective amounts of Securities to be purchased by the remaining
Underwriters and such other person or persons, if any, shall be taken as the
basis for all rights and obligations hereunder, but this shall not relieve any
defaulting Underwriter from liability for its default.
12. MISCELLANEOUS.
(a) OBLIGATIONS SEVERAL. Nothing contained in this Xxxxx Fargo Master AAU
or any AAU is intended to create a partnership between you and the Manager or
any of the other Underwriters and nothing contained in this Xxxxx Fargo Master
AAU or any AAU is intended to result in your being partners with the Manager or
with the other Underwriters and the obligations of you and each of the other
Underwriters are several and not joint. Each Underwriter elects to be excluded
from the application of Subchapter K, Chapter 1, Subtitle A, of the United
States Internal Revenue Code of 1986, as amended. Each Underwriter authorizes
the Manager, on behalf of such Underwriter, to execute such evidence of such
election as may be required by the United States Internal Revenue Service.
(b) LIABILITY OF MANAGER. The Manager shall be under no liability to you
for any act or omission except for obligations expressly assumed by the Manager
in the applicable AAU.
(c) TERMINATION OF MASTER AGREEMENT AMONG UNDERWRITERS. This Xxxxx Fargo
Master AAU may be terminated by either party hereto upon five business days
written notice to the other party; provided that with respect to any Offering
for which an AAU was sent prior to such notice, this Xxxxx Fargo Master AAU as
it applies to such Offering shall remain in full force and effect and shall
terminate with respect to such Offering in accordance with Section 9(a) hereof.
(d) GOVERNING LAW. THIS XXXXX FARGO MASTER AAU AND EACH AAU SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
(e) AMENDMENTS. This Xxxxx Fargo Master AAU may be amended from time to
time by consent of the parties hereto. Your consent shall be deemed to have been
given to an amendment to this Xxxxx Fargo Master AAU, and such amendment shall
be effective, five business days following written notice to you of such
amendment if you do not notify Xxxxx Fargo In Writing prior to the close of
business on such fifth business day that you do not consent to such amendment.
Upon effectiveness, the provisions of this Xxxxx Fargo Master AAU as so amended
shall apply to each AAU thereafter entered into except as otherwise specifically
provided in any such AAU.
(f) NOTICES. Any notice to any Underwriter shall be deemed to have been
duly given if mailed, sent by wire, telex, facsimile or electronic transmission
or other written communication or delivered in person or by overnight courier to
such Underwriter at the address provided to Xxxxx Fargo pursuant to Section
10(d) hereof. Any such notice shall take effect upon receipt thereof.
(g) EXECUTION IN COUNTERPARTS. This Xxxxx Fargo Master AAU may be executed
by you and Xxxxx Fargo Securities, LLC in any number of counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument. Transmission by telecopier or
facsimile transmission of an executed counterpart of this Xxxxx Fargo Master AAU
shall constitute due and sufficient delivery of such counterpart.
[SIGNATURE PAGE FOLLOWS]
Please confirm your acceptance of this Xxxxx Fargo Master AAU by signing and
returning to us the enclosed duplicate copy hereof.
Very truly yours,
Xxxxx Fargo Securities, LLC
By
__________________________
Name:
Title:
Confirmed and accepted
as of , 2009
(Name of Underwriter)
Address:
By
__________________________
Name:
Title:
(If person signing is not an officer or a partner,
please attach instrument of authorization)
EXHIBIT A
UNDERWRITERS' QUESTIONNAIRE
In connection with your participation in each Offering covered by the Xxxxx
Fargo Securities, LLC Master Agreement Among Underwriters dated July 1, 2003,
you confirm that, except as set forth In Writing in your timely acceptance
(including by wire, telex, facsimile or electronic data transmission or other
written communications) of the Invitation Wire with respect to such Offering:
(1) Neither you nor any of your directors, officers or partners has a
material relationship (as "material" is defined in Regulation C under the 0000
Xxx) with the Issuer, the Guarantor or any Seller.
(2) (If the offer and sale of the Securities are to be registered under
the 1933 Act pursuant to a Registration Statement on Form S-1 or Form
F-1:) Neither you nor any "group" (as that term is used in Section 13(d)(3)
of the 0000 Xxx) of which you are a member is the beneficial owner
(determined in accordance with Rule 13d-3 under the 0000 Xxx) of more than
5% of any class of voting securities of the Issuer or the Guarantor, nor do
you have any knowledge that more than 5% of any class of voting
securities of the Issuer or the Guarantor is held or to be held subject
to any voting trust or other similar agreement.
(3) Other than as may be stated in the Xxxxx Fargo Securities, LLC Master
Agreement Among Underwriters dated July 1, 2003, the applicable AAU, the
applicable Intersyndicate Agreement or the applicable dealer agreement, if
any, or in the Prospectus or the Registration Statement or the Offering
Circular, as the case may be, you do not know and have no reason to believe
that there is an intention to over-allot or that the price of any security may
be stabilized to facilitate the offering of the Securities.
(4) Except as described in the Prospectus or the Offering Circular, as
the case may be, and the Invitation Wire, you do not know of any discounts or
commissions to be allowed or paid to dealers, including any cash, securities,
contracts or other consideration to be received by any dealer, in connection
with the sale of the Securities.
(5) You have not prepared any report or memorandum for external use in
connection with the Offering. (If there are any exceptions, furnish four
copies of each report and memorandum to Xxxxx Fargo Securities, LLC, 0 Xx.
Xxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention: Xxxx Xxxxxx, Fax (000) 000-0000,
identify each class of person who received such material and the number of
copies distributed to each such class, and indicate when such distribution
commenced and ceased.)
(6) (If the offer and sale of the Securities are to be registered under
the 1933 Act pursuant to a Registration Statement on Form S-1 or Form F-1:)
You have not within the past twelve months prepared or had prepared for you
any engineering, management or similar report or memorandum relating to broad
aspects of the business, operations or products of the Issuer or the
Guarantor. (The immediately preceding sentence does not apply to reports
solely comprised of recommendations to buy, sell or hold the Issuer's or the
Guarantor's securities, unless such recommendations have changed within the
past six months or to information already contained in documents filed with
the Commission. If there are any exceptions, furnish four copies of each
report and memorandum to Xxxxx Fargo Securities, LLC, 0 Xx. Xxxx Xxxxxx,
Xxxxxxxxx, XX 00000, Attention: Xxxx Xxxxxx, Fax (000) 000-0000, identify each
class of persons who received such material and the number of copies
distributed to each such class, and indicate when such distribution commenced
and ceased.)
(7) You are not an "affiliate" of the Issuer or the Guarantor for
purposes of Rule 2720 of the National Association of Securities Dealers,
Inc.'s ("NASD") Conduct Rules. You understand that under Rule 2720 (except as
provided in Rule 2720(b)(1)(C)) two entities are "affiliates" of each other if
one entity controls, is controlled by, or is under common control with, the
second entity and that "control" is presumed to exist if one entity (or, in
the case of an NASD member, the member and all "persons associated with" it
(as defined in the NASD By-Laws)) beneficially owns 10% or more of the second
entity's outstanding voting securities or, if the second entity is a
partnership, if the first entity has a partnership interest in 10% or more of
the second entity's distributable profits or losses.
(8) (If the Securities are not rated as investment grade debt securities
or preferred stock, are not equity securities for which there exists a "bona
fide independent market" (as defined in Rule 2720(b)(3) of the NASD's Conduct
Rules) or are not otherwise exempted under Rule 2720(b)(7)(D) of the NASD's
Conduct Rules:) You do not have a "conflict of interest" with the Issuer or
the Guarantor under Rule 2720 of the NASD's Conduct Rules. In that regard, you
specifically confirm that you, your "parent" (as defined in Rule 2720), your
affiliates and "persons associated with" you (as defined in the NASD By-Laws),
in the aggregate do not (a) beneficially own 10% or more of the Issuer's or
the Guarantor's "common equity," "preferred equity," or "subordinated debt"
(as each such term is defined in Rule 2720), or (b) in the case of an Issuer
or Guarantor which is a partnership, beneficially own a general, limited or
special partnership interest in 10% or more of the Issuer's or Guarantor's
distributable profits or losses.
(9) (If a filing under NASD Conduct Rule 2710 is required:) Neither you
nor any of your directors, officers, partners or "persons associated with"
you (as defined in the NASD By-Laws) nor, to your knowledge, any "related
person" (defined by the NASD to include legal counsel to the Underwriters
in the applicable Offering, financial consultants and advisors, finders,
members of the selling or distribution group, any NASD member participating
in the applicable Offering and any and all other persons associated with or
related to and members of the immediate family of any of the foregoing) or any
other broker-dealer, (a) within the last 12 months have purchased in private
transactions, or intend before, at or within six months after the commencement
of the public offering of the Securities to purchase in private transactions,
any securities of the Issuer, the Guarantor or any Issuer Related Party (as
hereinafter defined), (b) within the last 12 months had any dealings with the
Issuer, the Guarantor, any Seller or any subsidiary or controlling person
thereof (other than relating to the proposed Underwriting Agreement) as to
which documents or information are required to be filed with the NASD pursuant
to its Conduct Rule 2710, or (c) during the 12 months immediately preceding
the filing of the Registration Statement (or, if there is none, the Offering
Circular), have entered into any arrangement which provided or provides for
the receipt of any item of value (including, but not limited to, cash payments
and expense reimbursements) and/or the transfer of any warrants, options or
other securities from the Issuer, the Guarantor or any Issuer Related Party to
you or any related person.
(10) (If a filing under NASD Conduct Rule 2710 is required:) There is no
association or affiliation between you and (a) any officer or director of the
Issuer, the Guarantor or any Issuer Related Party, or (b) any holder of five
percent or more (or, in the case of an initial public offering of equity
securities, any holder) of any class of securities of the Issuer, the
Guarantor or an Issuer Related Party, it being understood that, for purposes
of paragraph (9) above and this paragraph (10), the term "ISSUER RELATED
PARTY" includes any Seller, any affiliate of the Issuer, the Guarantor or a
Seller and the officers or general partners, directors, employees and
securityholders thereof. (If there are any exceptions, state the identity of
the person with whom the association or affiliation exists and, if relevant,
the number of equity securities or the face value of debt securities owned by
such person, the date such securities were acquired and the price paid for
such securities.)
(11) (If the Securities are not issued by a real estate investment
trust:) No portion of the net offering proceeds from the sale of the
Securities will be paid to you or any of your affiliates or "persons
associated with" you (as defined in the NASD By-Laws) or members of the
immediate family of any such person.
(12) (If the Securities are debt securities and their offer and sale is
to be registered under the 1933 Act:) You are not an "affiliate" (as defined
in Rule 0-2 under the Trust Indenture Act of 1939, as amended (the "1939
ACT")) of the Trustee for the Securities or of its parent, if any. Neither the
Trustee nor its parent, if any, nor any of their directors or executive
officers is a "director, officer, partner, employee, appointee or
representative" of yours (as those terms are defined in or, if not defined in,
used in the 1939 Act or in the relevant instructions to Form T-1). You and
your directors, partners, and executive officers, taken as a group, did not
on the date of or specified in the Invitation Wire, and do not, own
beneficially 1% or more of the shares of any class of voting securities of the
Trustee or of its parent, if any. If you are a corporation, you do not
have outstanding and have not assumed or guaranteed any securities issued
otherwise than in your present corporate name.
(13) (If the Issuer is a public utility:) You are not a "holding company"
or a "subsidiary company" or an "affiliate" of a "holding company" or of a
"public-utility company," each as defined in the Public Utility Holding
Company Act of 1935. (14) (If you are, or are affiliated with, any U.S. or
non-U.S. bank:) You hereby represent that your participation in the offering
of the Securities on the terms contemplated in the applicable AAU and the
proposed Underwriting Agreement does not contravene any federal or state
banking law restricting the exercise of securities powers in the United
States.
Capitalized terms used but not defined herein shall have the respective meanings
given to them in the applicable AAU (including the Xxxxx Fargo Securities, LLC
Master Agreement Among Underwriters dated July 1, 2003 incorporated by reference
therein).
